DFES Preamble

The current Bush Fires Act 1954 (Bush Fires Act) contains a number of provisions in relation to the mitigation of bushfires including those related to bans, restrictions and risk mitigation activities. Additional provisions in the Fire Brigades Act 1942 (Fire Brigades Act) provide broad powers to the FES Commissioner, and other authorised persons, to require owners and occupiers to take action to limit danger posed to life and property.

Consultation undertaken to date has raised a number of issues and stakeholders have repeatedly expressed concern in relation to fire mitigation, prevention and preparedness, in particular in relation to fuel loads across the State. There is a need to provide for a clear process in respect to risk mitigation from a State planning level down to local planning and operations.

The principle underpinning the proposed changes to the current legislative position is that every piece of land needs to have the level of natural hazard risk identified in respect of that land, with a treatment plan where required. The process must be transparent and visible, and there must be clarity of roles and accountability.

The new emergency services legislation will seek to provide a strong mandate for shared responsibility with regard to risk mitigation strategies.

 


 

3.1 BINDING THE CROWN

Binding the Crown refers to the extent to which, if at all, State Government agencies are bound by the provisions of the emergency services legislation in respect to any vested land or land that it controls or manages. The Fire and Emergency Services Act 1998 (Fire and Emergency Services Act) does bind the Crown, such as to the provisions dealing with the Emergency Services Levy (ESL), whilst the Bush Fires Act and Fire Brigades Act do not.

Recommendation 4 of the Community Development and Justice Standing Committee (CDJSC) Inquiry into Fire and Emergency Services Legislation 2006 (CDJSC inquiry) report provided ‘the emergency services Act is to bind the Crown’ [1].

DFES PREFERRED OPTION; AVBFB PREFERRED OPTION

3.1.1 Binding the Crown to the entire Act

AVBFB comments:

While the Association supports the general principle of all landowners being held to equal standards and responsibility, only qualified support for this issue can be offered before it is able to be considered in the context of the full text of proposed draft legislation.

OTHER OPTIONS NOT SUPPORTED

3.1.2 Binding the Crown in respect of risk mitigation activities

3.1.3 Do not bind the Crown

 


 

3.2 DIRECTING THE CROWN (STATE AGENCIES)

In the event the Crown is bound by the new emergency services Act, the legislation would need to empower a party to direct State agencies in respect of any obligations they may have in terms of the binding provisions

DFES PREFERRED OPTION; AVBFB PREFERRED OPTION

3.2.1 The FES Commissioner can direct State agencies

AVBFB comments:

The Association acknowledges the practical benefits of empowering a FES Commissioner in this respect and offers in-principle support subject to the detail of proposed future legislation.

OTHER OPTIONS NOT SUPPORTED

3.2.2 The Minister for Emergency Services can direct State agencies with the FES Commissioner performing a compliance role

3.2.3 Local government can direct State agencies

 


 

3.3 RISK MITIGATION ON LOCAL GOVERNMENT LAND

Local government currently has the power to ensure that risk mitigation activities are carried out by private landowners within its local boundaries. However, there are no equivalent provisions to ensure that local government undertakes risk mitigation on its own land.

DFES PREFERRED OPTION

3.3.1 Making provision for local government responsibilities in respect of risk mitigation activities on its land or land it manages, controls or is under its care

AVBFB PREFERRED OPTION

None of the options presented can be supported at this time

AVBFB comments:

The Association strongly argues that any proposed future legislation should bind all levels of government equally to the act. Therefore the AVBFB is unable to support either of the options presented and strongly recommends alternative language that refers to all levels and agencies of government equally.

OTHER OPTIONS NOT SUPPORTED

3.3.2 No legislative requirement for local government to undertake risk mitigation on its land.

 


 

3.4 DIRECTING LOCAL GOVERNMENT TO ENGAGE IN RISK MITIGATION

Establishing provisions in the new emergency services Act obligating local government in respect of risk mitigation on its land, requires a subsequent provision dealing with who could give directions when the obligations are not fulfilled.

DFES PREFERRED OPTION

3.4.1 Local government will have an obligation to take such mitigation steps as required by the FES Commissioner

AVBFB PREFERRED OPTION

None of the options presented can be supported at this time

AVBFB comments:

The Association strongly argues that any proposed future legislation should bind all levels of government equally to the act. Therefore the AVBFB is unable to support either of the options presented and strongly recommends alternative language that refers to all levels and agencies of government equally.

OTHER OPTIONS NOT SUPPORTED

3.4.2 Local government will have an obligation to take such mitigation steps as required by the Minister for Emergency Services

 


 

3.5 LEGISLATIVE BASIS FOR COMMITTEES

The current emergency services legislation provides for the formation of various committees with different functions:

The Bush Fires Act s 67 and 68 currently provides for the formation of Bush Fire Advisory Committees by a local government. Options regarding this type of committee have been considered under section 2.3 Bush Fire Advisory Committees in Legislation.

The Fire and Emergency Services Act s 24 provides for advisory committees that may be established by the Minister for Emergency Services on matters relevant to the operation or administration of the emergency services Acts.

The Fire and Emergency Services Act s 25 provides for Volunteer Advisory Committees that must be established by the Minister for Emergency Services on matters relevant to the operation or administration of Volunteer Brigades, Groups and Units (BGUs).

Certain State agencies and local government have obligations in regards to the development and implementation of risk management plans. These obligations are based on policies issued under the Emergency Management Act. The Emergency Management Act provides for the formation of the State Emergency Management Committee (SEMC); District Emergency Management Committees (DEMCs); and Local Emergency Management Committees (LEMCs).

The FES Commissioner, working with local government, is currently undertaking the Bushfire Risk Management Planning Project. This project will see the development of Bushfire Risk Management Plans (BRMPs) promoted at a local scale. The first stage of the project includes 45 local governments in southern Western Australia.

The current emergency services legislation does not provide for any committees tasked with overseeing and enforcing the development and implementation of risk management plans.

DFES PREFERRED OPTION

3.5.1 No further committees

AVBFB PREFERRED OPTION

None of the options presented can be supported at this time

AVBFB comments:

The Association again asserts the need for any proposed future legislation to avoid overly rigid or binary approaches, especially in the general realm of consultation.

The choice of language in the DFES preferred option risks creating the perception that the Department sees no value in consulting with the myriad of highly experienced and valuable stakeholders beyond its own walls which, needless to say, further contributes to that view.

The choice of language of the second two alternatives infers an “all or nothing” situation of either having “No further committees” or “forming” one.

As a result of the AVBFB’s deep understanding and experience of inclusive, cooperative decision-making cultures, it is proposed that any future draft legislation should provide a capacity for the creation of advisory and/or consultative committees without an obligation to do so.

Draft legislation that provides for minimum standards of committees that may be created on matters relevant to the operation or administration of the Act would be strongly supported by the AVBFB.

OTHER OPTIONS NOT SUPPORTED

3.5.2 Form a State-level committee and make BFAC formation by local government compulsory, with an obligation to draft and implement the risk management plans for its area

3.5.3 Form a State-level Committee and local committees to develop and implement the risk management plans, with BFACs remaining as advisors to local government and the local committees

 


 

3.6 REPORTING

Section 50 of the Bush Fires Act provides for limited recordkeeping and potential reporting, by local government if set out in regulations.

DFES PREFERRED OPTION

3.6.1 Local government and specified State agencies must report to the FES Commissioner on items specified in the legislation and additional matters as may be required by the FES Commissioner

AVBFB PREFERRED OPTION

3.6.2 Local government and specified State agencies must report to a FES Commissioner on items specified in the Act or in the regulations only

AVBFB comments:

The Association is of the view that this option strikes a reasonable balance between the legitimate need for DFES to obtain information from local government and the minimisation of opportunity for the perception of an abuse of power.

The AVBFB has faith in Western Australia’s Parliamentary system and therefore would support the use of agencies being compelled (must) to report on issues deemed relevant by Parliament via the legislation and regulations.

The Association strongly advocates for the establishment of a genuinely two-way reporting system that enables local governments and specified state agencies to require reports from DFES on items specified in the Act.

OTHER OPTIONS NOT SUPPORTED

3.6.3 Local government and State agencies must report on specified items following receipt of notice from the FES Commissioner

3.6.4 No additional reporting requirements

 


 

3.7 RISK MANAGEMENT PLANNING

A recurring theme in relation the prevention of fire, and other hazards, arising out of consultation, is the importance of undertaking comprehensive risk management planning.

The overall risk management planning for the State is conducted in terms of the Emergency Management Act. The obligations of the Crown and local government in respect of risk mitigation will, in part, be determined by the risk management plan for each local government area (as discussed in section 3.3 Risk Mitigation on Local Government Land).

Risk management planning is policy driven through the Emergency Management Act with DFES as one of the primary participants in the process.

DFES PREFERRED OPTION; AVBFB PREFERRED OPTION

3.7.1 Maintain current risk management planning arrangements

AVBFB comments:

The Association is of the view that greater support for risk management planning and works is required. However, the AVBFB does not endorse the creation of a legislative requirement to do so on the grounds of it reducing the flexibility required to manage local environments with local resources.

OTHER OPTIONS NOT SUPPORTED

3.7.2 Legislative requirement to undertake risk management planning

 


 

3.8 MITIGATING THE EFFECTS OF OTHER NATURAL HAZARDS

Under the Bush Fires Act, prevention of bushfires is a function of local government and there are specific powers that are provided to local government for this purpose.

Although local government, under the Emergency Management Act, is empowered to require property owners to clean up in preparation for cyclones, it does not have the power under this Act to consider other natural hazards.

DFES PREFERRED OPTION; AVBFB PREFERRED OPTION

3.8.1 Empower local government to issue notices to owners and occupiers to require them to mitigate the risk associated with other specified natural hazards

AVBFB comments:

This option is supported.

OTHER OPTIONS NOT SUPPORTED

3.8.2 Do not provide local government with additional powers to mitigate the risk associated with other natural hazards

 


 

3.9 HAZARD MANAGEMENT PLANS – PRIVATE LANDHOLDINGS

While risk management planning may be dealt with under the Emergency Management Act and related policies (as discussed at section 3.7 Risk Management Planning), some stakeholders have suggested a need for hazard management plans to be formulated on specific private land where there is an identified high risk. This would most likely be for land that is identified in a local risk management plan.

In this context the ‘hazard management plan’ would deal with privately owned land where the requirements of firebreaks or Asset Protections Zones alone are not sufficient.

The current s 33(1)(b) of the Bush Fires Act may be read as empowering local government to issue notices to landowners requiring private hazard management plans. This option seeks to clarify the position.

DFES PREFERRED OPTION; AVBFB PREFERRED OPTION

3.9.1 Local government may require the development and implementation of a hazard management plan on private land

AVBFB comments:

In order to remain consistent with the support for 3.7.1 above, the Association does not support a legislative requirement to compel private land owners to develop a hazard management plan but does endorse the need for provisions that allow for a hazard management plan where a Local Government sees need.

Further, the Association strongly supports an over-all “tenure blind” approach to the management of hazards.

OTHER OPTIONS NOT SUPPORTED

3.9.2 Local Emergency Management Committees (as opposed to local government) may require a hazard management plan on private land

3.9.3 No requirement for a hazard management plan on private land

 


 

3.10 THE FES COMMISSIONER AND PRIVATE LANDOWNERS

Sections 33 and 35 of the Bush Fires Act provides certain powers to the Minister for Emergency Services and the FES Commissioner to approach private landowners, but only in cases where local government has defaulted on a requirement by the Minister for Emergency Services to issue a notice in terms of s 33 of the Bush Fires Act.

DFES PREFERRED OPTION

3.10.1 The FES Commissioner may require private landowners to conduct risk mitigation on private land

AVBFB PREFERRED OPTION

3.10.2 The FES Commissioner may require private landowners to conduct risk mitigation only after a local government has failed to require it

AVBFB comments:

The Association supports legislative provisions to enable a Commissioner to require risk mitigation works on private land subject to a consistent approach being applied across all landowners and only after local government has actively refused (as opposed to ‘failed’) to not enforce said works.

If future legislation is to include such a provision, the AVBFB would strongly encourage the collaboration of all stakeholders in developing an objective process that can be applied to ensure works orders are issued impartially and consistently.

 


 

3.11 PROHIBITED AND RESTRICTED BURNING TIMES

Under the current legislation there are two main categories of limited burning times in the Bush Fires Act: Prohibited Burning Times under s 17 and Restricted Burning Times under s 18. Each of these sections, and the related regulations, provide for conditions under which burning may take place, when permits are required and who may issue, suspend, vary and add conditions to permits.

DFES PREFERRED OPTION

3.11.1 Replace Restricted and Prohibited Burning Times with a single Fire Danger Period

AVBFB PREFERRED OPTION

3.11.2 Keep existing categories of burning limitations

AVBFB comments:

The Association supports this option on the basis of need to recognise the often diverse conditions across the state.

 


 

3.12 THE POWER TO ALTER A FIRE DANGER PERIOD

Sections 17 and 18 of the Bush Fires Act outline the legislative framework for the declaration and variation of the Prohibited Burning Time and Restricted Burning Time periods. Section 17(7) of the Bush Fires Act provides that a local government may, if the conditions warrant, shorten, extend, suspend or re-impose a period of Prohibited Burning Times. This provision is mirrored by s 18(5) of the Bush Fires Act for Restricted Burning Times.

Section 17(7B) provides that:

A variation of Prohibited Burning Times shall not be made under subsection (7) if that variation would have the effect of shortening or suspending those Prohibited Burning Times by, or for, more than 14 successive days [1].

Section 18(5B) of the Bush Fires Act contains a similar provision for Restricted Burning Times.

In this section Fire Danger Periods is used to refer to Prohibited and Restricted Burning Times as per preferred option 3.11.1.

DFES PREFERRED OPTION

3.12.1 Local government is not permitted to alter Fire Danger Periods

AVBFB PREFERRED OPTION

3.12.3 Retain existing ability to shorten, extend, suspend or re-impose a Fire Danger Period and clarify that adjustments cannot exceed 14 days on a cumulative basis

AVBFB comments:

The Association contests that the existing flexibility in the current legislation provides for the option for local decisions to be made in accordance with local conditions.

Once again, the AVBFB submits that unless there is a strong, coherent argument for changes that reduce the capacity for local knowledge to be incorporated in decisions affecting local areas, those changes cannot be supported. In this case, the preamble fails to identify any genuine need for the centralisation of control.

OTHER OPTIONS NOT SUPPORTED

3.12.2 Remove the stipulation that any shortening of a Fire Danger Period shall not be for the amount of more than 14 successive days

 


 

3.13 TOTAL FIRE BANS – EXEMPTIONS

The current exemptions to a Total Fire Ban are:

  • Gas appliances under certain conditions [1];
  • The Minister for Emergency Services may issue an exemption to the Total Fire Ban subject to conditions [2]; and
  • Any exemptions provided in the regulations [3].

Over time the conditions to a s 22C exemption have become standardised. Stakeholders considered whether the new emergency services Act should continue to provide for the granting of specific exemptions or whether an automatic exemption could apply by complying with a Total Fire Ban exemption section of the regulations, where all the mandatory requirements and conditions would be set out.

DFES PREFERRED OPTION

3.13.1 Allow for an automatic exemption to undertake an activity during a Total Fire Ban if the prescribed conditions are met. The person must notify DFES and local government of their intent to undertake the exempted activity

AVBFB PREFERRED OPTION

3.13.4 Exemptions to Total Fire Bans will continue to require an application to DFES

AVBFB comments:

The Association supports this option to ensure an appropriate level of local expertise and knowledge contributes to the approval (or denial) of exemption applications.

OTHER OPTIONS NOT SUPPORTED

3.13.2 The new emergency services Act will allow for automatic permission to conduct an activity during Total Fire Ban if conditions in the regulations are met (no notification)

3.13.3 The new emergency services Act will NOT allow for exemptions from a Total Fire Ban

 


 

3.14 FIRE DANGER FORECASTS

The concept of a Fire Danger Forecast (FDF) is used in the Bush Fires Act and the Bush Fires Regulations 1954. It is issued by the Bureau of Meteorology and provides ratings of ‘catastrophic’, ‘extreme’, ‘severe’ or ‘very high’.

The FDF triggers additional requirements in respect of certain activities and in some cases prohibits the activity.

DFES PREFERRED OPTION

3.14.1 Remove all reference to Fire Danger Forecasts

AVBFB PREFERRED OPTION

3.14.2 Retain reference to Fire Danger Forecasts

AVBFB comments:

Without further explanation of the rationale behind the DFES preferred option, the Association takes the view that FDF’s are useful by providing both a practical guide to those who may otherwise engage in high fire risk activities as well as facilitating an ongoing public discourse on the ever-present risk of fire in many of the state’s high fire risk areas.

 


 

3.15 TOTAL FIRE BAN – GAZETTAL OF DECLARATION

Currently s 22A(5) of the Bush Fires Act provides that the Minister for Emergency Services must publish each Total Fire Ban declaration in the Government Gazette. Due to the timing of a Total Fire Ban declaration and the administration required to have the publication placed, the Gazettal usually occurs after the Total Fire Ban has already commenced, especially when there is a weekend declaration.

DFES PREFERRED OPTION; AVBFB PREFERRED OPTION

3.15.1 Replace Gazettal requirement with a FES Commissioner’s certificate of proof

AVBFB comments:

This option is supported on the premise that it appears to represent a common-sense approach to resolving a practical challenge.

OTHER OPTIONS NOT SUPPORTED

3.15.2 Retain Gazettal requirement for Total Fire Bans

 


 

3.16 PERMITS TO BURN

Currently permit requirements are set out in the emergency services Acts as well as in the regulations. There is also provision for the issuing authority to add requirements to the permit conditions. Stakeholders have indicated that the new emergency services Act should look to simplifying this process to make it easier for the wider community to understand their obligations by reducing the variations in permit conditions across the State.

There was also a view that in some cases, where the requirements are clearly identifiable in the regulations, there should be no need for a permit. This is particularly relevant to stakeholders requiring permits in multiple local government areas or those who move between local government areas on a regular basis.

DFES PREFERRED OPTION

3.16.1 Permits will be required for burns that pose a higher risk, with conditions for most burns set out in the regulations

AVBFB PREFERRED OPTION

3.16.2 Permits required in most cases

AVBFB comments:

Consistent with the general philosophy of “fore-warned, forearmed”, the Association supports the requirement for permits to be sought and approved in most cases to maximise the opportunity for risk management and community education.

OTHER OPTIONS NOT SUPPORTED

3.16.3 Permits are not required, with all burn types prescribed in regulations

 


 

3.17 HAZARD MITIGATION STRATEGIES: PROTECTION FROM LIABILITY

The question considered under this section relates to the application of the protection from civil liability clause (the Protection Clause) [1] in cases of the performance of risk mitigation activities, in good faith and under the Act.  Other issues relating to the Protection from Liability are discussed in Chapter 8 Protection from Liability.

Except for those parties specifically mentioned in the emergency services legislation as having a risk mitigation function or acting under direction of the FES Commissioner, State agencies, local government and private landowners may not be covered by s 37 of the Fire and Emergency Services Act when engaged in risk mitigation activities on their land or land they manage or control. For private landowners, this is the case even if acting under a s 33 notice [2] (firebreak notice) or if they are using fire in terms of a permit.

DFES PREFERRED OPTION

3.17.1 State agencies, local government and private landowners should not be afforded protection from civil liability in cases of risk mitigation activities

AVBFB PREFERRED OPTION

3.17.2 State agencies, local government and private landowners should be afforded protection from civil liability in cases of ‘prescribed’ risk mitigation burning only

AVBFB comments:

Based on current information, this option is supported but note the need for the specific inclusion of volunteers and clarity regarding the proposed definition of “prescribed”.

 


 

3.18 HAZARD MITIGATION STRATEGIES: PRESCRIBED BURNING AS A SEPARATE CONCEPT

Prescribed Burning is not dealt with specifically under the current emergency services legislation.

DFES PREFERRED OPTION

3.18.1 Prescribed Burning is defined and referred to as a distinct mitigation strategy

AVBFB PREFERRED OPTION

3.18.2 Prescribed Burning is not outlined as a distinct mitigation strategy but forms part of a general clause that covers all forms of risk mitigation

AVBFB comments:

Assuming no protection from liability is to be afforded to services undertaking hazard mitigation works (3.17.1), the Association is of the view that the benefits of creating legislation to enact the DFES preferred option is largely moot. Other than assisting to facilitate a restructure of the services based on ‘classes’ (as recommended by DFES in 2.4.1), the AVBFB sees no need to specifically identify Prescribed Burning as a distinct mitigation strategy and believes doing so may create an unnecessary new level of red tape.

 


 

3.19 HAZARD MITIGATION STRATEGIES: REGULATION OF PRESCRIBED BURNING

If Prescribed Burning is included as a distinct risk mitigation strategy in the new emergency services  Act, then there are options as to the manner in which this activity could be regulated.

DFES PREFERRED OPTION

3.19.1 PREFERRED OPTION: The FES Commissioner has the power to provide a system that must be complied with in the case of every Prescribed Burn

AVBFB PREFERRED OPTION

3.19.2 Prescribed Burn conditions remain set in policy only

AVBFB comments:

The Association does not support the inclusion of Prescribed Burning as a distinct risk mitigation strategy in any draft legislation. However if it is to be defined, the AVBFB strongly opposes the need to legislate anything other than the need for those involved in such an activity to be required to follow an approved “system”.

Legislating a “system” reduces the flexibility required to adapt with changing technology and local conditions/resources. The AVBFB consistently argues that a “one-size-fits-all” approach to emergency services across a state as remote and diverse as Western Australia creates both real and perceived challenges that are often divisive and counter-productive.

A policy-based approach means changes can be made that enable different approaches in different areas, drawing on the local expertise and resources available in that district.

 


 

3.20 HAZARD MITIGATION STRATEGIES: PRIMACY OF LEGISLATION

The current emergency services legislation provides for certain sections taking precedence over the provisions of any other specified Acts:

  • Section 14A of the Bush Fires Act in relation to the Emergency Management Act; and
  • Section 14B(3) of the Bush Fires Act in relation to the Road Traffic Act 1974.

There is the potential for a conflict between an obligation imposed by, or an ability to perform an action in compliance with, the new emergency services Act on the one hand, and obligations imposed by other Acts on the other.

An example of this is a requirement to conduct hazard mitigation activities which could open up possible prosecution for a breach of the Environmental Protection Act 1986 and local government by-laws or planning schemes in respect of the clearing of natural vegetation.

DFES PREFERRED OPTION; AVBFB PREFERRED OPTION

3.20.1 In the case of any conflict between the new emergency services Act (including any legislated guideline, notice or direction issued in terms of the Act) and any other prescribed Act, the new emergency services Act will prevail

AVBFB comments:

The Association supports this option in principle, but cannot provide unqualified support before the detail of actual draft legislation is available for consideration.

OTHER OPTIONS NOT SUPPORTED

3.20.2 Emergency services legislation will remain silent on primacy of legislation.

 


 

3.21 HAZARD MITIGATION STRATEGIES: ASSET PROTECTION ZONES

The Bush Fires Act contains two distinct subsections relating to bushfire risk mitigation:

  • Section 33(1)(a) empowers local government to issue firebreak notices; and
  • Section 33(1)(b) empowers local government to issue notices requiring the owner/occupier to do things in respect to anything on the land which ‘is or is likely to be conducive to the outbreak of a bush fire or the spread or extension of a bush fire’.

The general provisions contained in s 33(1)(b) could cover a notice issued in respect of various types of hazard mitigation activities including Asset Protection Zones.

The CDJSC inquiry recommendation 45 stated:

Local government should retain its ability to issue fire-break and hazard reduction notices, and exercise enforcement powers under the legislation (Section 33 Bush Fires Act 1954), but only where there is no procedure under any other Act or Regulation that is more appropriate in the circumstances to address that fire threat [1].

The question that arises is whether Asset Protection Zones should be set out in the new emergency services Act as a separately identified risk mitigation strategy.

DFES PREFERRED OPTION

3.21.1 Include provisions that deal specifically with Asset Protection Zones

AVBFB PREFERRED OPTION

3.21.2 Asset Protection Zones are not outlined as a distinct mitigation strategy

AVBFB comments:

Consistent with the view expressed in 3.19.2, the AVBFB does not support the definition of any particular mitigation (or response, rescue or otherwise) strategy being included in any future proposed legislation.

The Association does support the provision to enable local governments and a FES Commissioner to require certain hazard reduction strategies (see 3.8.1 and 3.10.2) which would allow for the above to occur without the need to increase the size and complexity of any proposed new legislation.

 


 

3.22 HAZARD PRONE AREA DECLARATIONS

Certain locations or areas of development are prone to impact from specific hazards [1]. Recognition of the risks in these areas is an important step in the mitigation of these hazards.

The Western Australian Town Planning Regulations 1967 (Town Planning Regulations) require local government to consider several factors when considering development applications, including ‘whether the land to which the application relates is unsuitable for the proposal by reason of it being, or being likely to be, subject to flooding, tidal inundation, subsidence, landslip, bushfire, or any other risk [2].

With increasing residential development in locations prone to specific hazards, combined with the anticipated future effects of climate change, the need for application of appropriate standards in new developments is becoming more critical.

For example, bushfire is recognised as a particular risk in Western Australia with some areas being subject to higher risk and impact. The Building Code of Australia (BCA) recognises that houses located near bushland require additional protection from flame contact, radiant heat and ember protection. The BCA requires all residential buildings in areas designated as bushfire prone to be designed and constructed in accordance with its minimum requirements. It references an Australian Standard (AS 3959 – Construction in Bushfire Prone Areas) which provides minimum construction practice for building materials. Additional bushfire mitigation measures are only mandated where there is a bushfire risk present.

The BCA contains a definition for ‘designated bushfire prone area’ which states:

‘means land which has been designated under a power in legislation as being subject, or likely to be subject, to bushfires [3]’

Local government was previously empowered to declare bushfire prone areas within its jurisdiction under s 433 of the Local Government (Miscellaneous Provisions) Act 1960 (Local Government (Misc Provisions) Act).This power was removed from local government when the Local Government (Misc Provisions) Act was amended in April 2012 by the Building Act 2012.

DFES PREFERRED OPTION

3.22.1 Empower the FES Commissioner to designate hazard prone areas

AVBFB PREFERRED OPTION

No preferred option at this point

AVBFB comments:

Comments made publicly by the Minister on 2 May 2014 indicate that the decision has already been made to empower a FES Commissioner to lead the process of declaring bushfire-prone areas.

While those comments were specifically regarding bush-fire and the DFES preferred option clearly extends beyond that to “hazards”, the Association accepts the will of the Minister.

OTHER OPTIONS NOT SUPPORTED

3.22.2 Do not empower the FES Commissioner to designate hazard prone areas

 


 

NON-LEGISLATIVE ISSUES

AVBFB comments:

The AVBFB commends the author of the concept paper for observing non-legislative issues raised by stakeholders during consultation and notes that all such issues fall outside the scope of the “Concept Paper: Review of Emergency Services Acts”.

The Association considers some of these items to be extremely important and therefore wishes to put on the record that the lack of comment in this submission does not imply support or otherwise for any of the issues published under the heading of “non-legislative issues” in this or other chapters.

Further, the AVBFB respectfully but strongly urges the government to explicitly seek comment from the Association and other stakeholders before seeking to address any of the issues identified as not within the scope of this paper.

 


 

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